Chiau v. Canada (Minister of Citizenship and Immigration), (1998) 141 F.T.R. 81 (TD)

• Judge: Dubé, J.
• Court: Federal Court (Canada)
• Case Date: February 03, 1998
• Jurisdiction: Canada (Federal)
• Citations: (1998), 141 F.T.R. 81 (TD)

Chiau v. Can. (M.C.I.) (1998), 141 F.T.R. 81 (TD)

MLB headnote and full text

Temp. Cite: [1998] F.T.R. TBEd. FE.051

Sing Chi Stephen Chiau (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-1441-96)

Indexed As: Chiau v. Canada (Minister of Citizenship and Immigration)

Federal Court of Canada

Trial Division

Dubé, J.

February 3, 1998.

Summary:

A visa officer denied Chiau's application for permanent residence on the basis that Chiau was inadmissible pursuant to s. 19(1)(c.2) of the Immigration Act as there were reasonable grounds to believe that he was a member of a criminal organization. Chiau applied for judicial review.

The Federal Court of Canada, Trial Division, dismissed the application.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See first Aliens - Topic 1747.1 ].

Administrative Law - Topic 2405

Natural justice - Procedure - General - Notice of subject matter to be considered - [See first Aliens - Topic 1747.1 ].

Administrative Law - Topic 9118

Boards and tribunals - Judicial review - Curial deference to decisions of tribunals - [See second Aliens - Topic 1747.1 ].

Aliens - Topic 1230

Admission - Immigrants - Application for admission - Immigrant visa - Duty of officer (incl. duty of fairness) - [See first Aliens - Topic 1747.1 ].

Aliens - Topic 1230.1

Admission - Immigrants - Application for admission - Jurisdiction - Immigration officers - [See second Aliens - Topic 1747.1 ].

Aliens - Topic 1701.1

Exclusion and expulsion - Immigration - Exclusion - General - Jurisdiction - Immigration officer - [See second Aliens - Topic 1747.1 ].

Aliens - Topic 1747.1

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of criminal organization - A visa officer denied Chiau's application for permanent residence on the basis that Chiau was inadmissible pursuant to s. 19(1)(c.2) of the Immigration Act as there were reasonable grounds to believe that he was a member of a criminal organization - Chiau sought judicial review - He argued that he should have been told the case against him and been given an opportunity to respond - The Federal Court of Canada, Trial Division, held that the requirements of procedural fairness were met - A letter sent to Chiau by the visa officer requested an interview and specifically referred to s. 19(1)(c.2) and Chiau's "links with triads" - Chiau was given an opportunity to respond to the visa officer's concerns and to submit additional material - There was no obligation to provide Chiau with a summary of confidential information relied upon by the visa officer - See paragraphs 14 to 18.

Aliens - Topic 1747.1

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of criminal organization - A visa officer denied Chiau's application for permanent residence on the basis that Chiau was inadmissible pursuant to s. 19(1)(c.2) of the Immigration Act as there were reasonable grounds to believe that he was a member of a criminal organization - In particular, the visa officer was concerned about Chiau's links with a powerful Chinese triad in Hong Kong - Chiau applied for judicial review - The Federal Court of Canada, Trial Division, dismissed the application - The court stated, inter alia, that the visa officer had extensive experience and specialized knowledge with reference to triad activities in Hong Kong and therefore the court must view his definition of "reasonable grounds" and "member" with considerable deference - The visa officer was well within his jurisdiction to interpret s. 19(1)(c.2) as he did - See paragraph 31.

Aliens - Topic 1747.1

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of criminal organization - A visa officer denied Chiau's application for permanent residence on the basis that Chiau was inadmissible pursuant to s. 19(1)(c.2) of the Immigration Act as there were reasonable grounds to believe that he was a member of a criminal organization - Chiau applied for judicial review - The Federal Court of Canada, Trial Division, dismissed the application - In reaching its decision, the court discussed the meaning of "member" and "reasonable grounds" within the context of s. 19(1)(c.2) - See paragraphs 19 to 36.

Aliens - Topic 4073

Practice - Judicial review - Nondisclosure of confidential information - A visa officer denied Chiau's application for permanent residence on the basis that Chiau was inadmissible pursuant to s. 19(1)(c.2) of the Immigration Act - Chiau applied for judicial review - The Minister moved under s. 82.1(10) of the Act for an in camera hearing and an order that certain confidential information not be disclosed to Chiau on the grounds that disclosure would be injurious to Canada's national security or to the safety of persons - The motion was granted - Chiau argued that a statutory provision which expressly exempts information from disclosure was to be strictly construed and that therefore the information could be revealed without identifying the informers - The Federal Court of Canada, Trial Division, rejected the argument - See paragraphs 18 and 42 to 43.

Words and Phrases

Member - The Federal Court of Canada, Trial Division, discussed the meaning of the word "member" in s. 19(1)(c.2) of the Immigration Act, R.S.C. 1985, c. I-2 - See paragraphs 32 to 36.

Words and Phrases

Reasonable grounds - The Federal Court of Canada, Trial Division, discussed the meaning of the phrase "reasonable grounds" in s. 19(1)(c.2) of the Immigration Act, R.S.C. 1985, c. I-2 - See paragraphs 19 to 31.

Cases Noticed:

Chan v. Canada (Minister of Citizenship and Immigration) (1996), 114 F.T.R. 247; 136 D.L.R.(4th) 433 (T.D.), refd to. [para. 17, footnote 3].

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police and Ontario (Attorney General), [1979] 1 S.C.R. 311; 23 N.R. 410; 88 D.L.R.(3d) 671; 78 C.L.L.C. 14,181, refd to. [para. 17, footnote 4].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161; 90 D.L.R.(4th) 289, refd to. [para. 17, footnote 4].

Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1; [1994] 7 W.W.R. 1; 92 B.C.L.R.(2d) 145; 14 B.C.R.(2d) 217; 22 Admin. L.R.(2d) 1; 114 D.L.R.(4th) 385, refd to. [para. 20, footnote 6].

Muliadi v. Minister of Employment and Immigration, [1986] 2 F.C. 205; 66 N.R. 8; 18 Admin. L.R. 243 (F.C.A.), refd to. [para. 20, footnote 6].

Fong v. Minister of Employment and Immigration (1990), 35 F.T.R. 305; 11 Imm. L.R.(2d) 205 (T.D.), refd to. [para. 20, footnote 6].

Nicolae v. Canada (Secretary of State) (1995), 90 F.T.R. 280; 29 Imm. L.R.(2d) 148 (T.D.), refd to. [para. 20, footnote 6].

Lee v. Canada (Minister of Citizenship and Immigration) (1995), 29 Imm. L.R.(2d) 222 (F.C.T.D.), refd to. [para. 20, footnote 6].

Smith (J.) v. Minister of Employment and Immigration (1991), 42 F.T.R. 81 (T.D.), refd to. [para. 23, footnote 7].

Al Yamani v. Canada (Solicitor General) et al., [1996] 1 F.C. 174; 103 F.T.R. 105 (T.D.), refd to. [para. 23, footnote 7].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183; 59 D.L.R.(4th) 416; 26 C.C.E.L. 85; 89 C.L.L.C. 14,031; 40 C.R.R. 100, refd to. [para. 24, footnote 8].

American Arab Anti-Discrimination Committee et al. v. Reno et al., [1995] U.S. App. Lexis 21415 (9th Cir. C.A.), refd to. [para. 24, footnote 8].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1; 38 D.L.R.(4th) 161, refd to. [para. 24, footnote 8].

Ramirez v. Minister of Employment and Immigration, [1992] 2 F.C. 306; 135 N.R. 390 (F.C.A.), refd to. [para. 27, footnote 9].

Sivakumar v. Minister of Employment and Immigration, [1994] 1 F.C. 433; 163 N.R. 197 (F.C.A.), refd to. [para. 27, footnote 9].

Hicks v. Faulkner (1878), 8 Q.B. 167, refd to. [para. 28, footnote 10].

Scott v. Canada, Siddle and Blaney (1975), 12 N.R. 477 (F.C.A.), refd to. [para. 29, footnote 11].

McCardle v. Egan, [1933] All E.R. 611, refd to. [para. 29, footnote 12].

Jolly v. Minister of Manpower and Immigration, [1975] F.C. 216; 7 N.R. 271 (F.C.A.), refd to. [para. 30, footnote 13].

Crevier v. Quebec (Attorney General) and Aubry; Crevier v. Quebec (Attorney General) and Cofsky and Alberta (Attorney General), [1981] 2 S.C.R. 220; 38 N.R. 541, refd to. [para. 31, footnote 15].

National Corn Growers' Association et al. v. Canadian Import Tribunal, [1990] 2 S.C.R. 1324; 114 N.R. 81; 74 D.L.R.(4th) 449; 45 Admin. L.R. 161, refd to. [para. 31, footnote 15].

Syndicat national des employés de la commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244; 35 Admin. L.R. 153, refd to. [para. 39, footnote 16].

Union des employés de services, local 298 v. Bibeault - see Syndicat national des employés de la commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).

Bibeault - see Syndicat national des employés de la commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298.

Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; 150 N.R. 161; 101 D.L.R.(4th) 673,; 93 C.L.L.C. 14,022, refd to. [para. 40, footnote 17].

Cadieux v. Director of Mountain Institution et al., [1985] 1 F.C. 378; 9 Admin. L.R. 50 (T.D.), refd to. [para. 42, footnote 18].

Napoli v. Workers' Compensation Board (B.C.) (1981), 126 D.L.R.(3d) 179 (B.C.C.A.), refd to. [para. 42, footnote 18].

Statutes Noticed:

Immigration Act, R.S.C. 1985, c. I-2, sect. 19(1)(c.2) [para. 1]; sect. 82.1(10) [para. 11].

Counsel:

Barbara Jackman, for the applicant;

Harry J. Wruck, for the respondent;

Daniel L. Kiselbach, for the respondent.

Solicitors of Record:

Jackman, Waldman and Associates, Toronto, Ontario, for the applicant;

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent;

Swinton & Company, Vancouver, British Columbia, for the respondent.

This application was heard on January 20-22, 1998, at Vancouver, British Columbia, before Dubé, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on February 3, 1998.